PROVISIONAL REMEDIES

ATTY. GEORGE S.D. AQUINO

 RULE 57
PRELIMINARY ATTACHMENT
Sec. 1
When can you avail of this remedy
• Commencement
• Any time before entry of judgment
Who may avail of this remedy?
• plaintiff or proper property (can include as counter claimant)

What is this remedy?

• may have property of adverse party attached as security for satisfaction of
any judgment that may be recovered
Grounds:
(a) Action for money or damages:
• Other than Moral/Exemplary
• Cause of action arising from Law, Contract, Quasi-Contract, Delict,
Quasi-Delict
• Against a party about to depart from Phils. with intent to defraud
his creditors
Grounds:
(b) Action for money or property:
• Embezzled or fraudulently misapplied
• Converted to his own use by a public officer, officer of corporation, or
attorney factor, broker, agent or clerk
• In the course of his employment as such
• Any other person in fiduciary capacity or wilful violation of duty
• No need to show that defendant is concealing, removing or disposing
of property
• It is the nature of the case, not necessarily the act(s) that entitle one
to attachment in this case.
Grounds:
(c) Action to recover the possession of property unjustly or
fraudulently Taken, Detained or Converted
• When property (or any part thereof) has been concealed, removed or
disposed
• To prevent its being found or taken by applicant or authorized person
• No need to be by one acting in fiduciary capacity but these must have
been an intent (or actual) hiding
• Property attached here is the subject of the action – it will render the
case useless if the attachment is not availed of.
Grounds:
(d) Action against a party guilty of FRAUD in contracting the debt on in
incurring the obligation upon which the action is brought or in
performance thereof
• Both fraud in inducement and fraud in performance of obligation

(e) Action against a party who has

• REMOVED or DISPOSED of property
• Is about to do so
• With intent to defraud his creditors
• Regardless of nature of case
• No need for it to be embezzled or fraudulently misapplied etc.
Grounds:
(f) Action against a party who does not reside and is not found in
Philippines or on whom summons may be served by publication
Process
Affidavit must state:
1. Sufficient cause of action exists
2. Ground is one of those stated in Sec. 1
3. No other sufficient security for the claim sought to be enforced by
the action
4. Amount due, or value to property is as much as the sum for which
the order is granted above all legal counterclaims
What if there was an Real Estate Mortgage, but plaintiff opted to forego
that and filed ordinary sum of money?
• not proper (unless he can show that REM would have been insufficient)

How is the Order issued?

• upon notice and hearing or
• ex parte even before summons is served
But writ will be enforced only is preceded a contemporaneously
accompanied by service of summons, complaint, application, order,
and attachment bond
EXCEPT if:
(a)Summons could not be served personally despite diligent efforts
(b)Summons could not be served personally by subst. service
(c)Defendant is resident temporarily absent from Philippines
(d)Defendant is non-resident of Philippines
(e)Action is in rem/ quasi in rem
Sec. 4
WHAT IS AN APPLICANT'S BOND?
• Conditioned on payment of all costs which adverse party may
sustain by reason of the attachment
Sec. 12
What is a counter-bond?
• secures/answers for payment of any judgment attaching party may
recover in the action
Sec. 17
Recovery from securities of counter-bond:
• summary hearing
• in same action AFTER judgment
Discharge of Attachment
(a) Cash deposit or counterbond (sec. 12)
• Not automatic
• upon notice of hearing
• Amount equal to the one stated in order
• Secure payment on any judgment that attaching party may recover in
the action
(b) Improperly or irregularly issued or enforced or that bond is
insufficient (sec. 13)
NOTE: If the basis for the application is a ground which is at the same
time the plaintiff’s cause of action, the attachment cannot be
discharged or dissolved because this would have the effect of pre-
judging the main case. (Metro Inc. v. Lara’s Gifts, G.R. No. 171741, 27
November 2009).
Sec. 20
Award of damages for the attachment
• Independent of whether or not he won the case
Manner of Attachment
• Section 7- Attachment of real and personal property
• Section 8- Effect of attachment of debts. credits and all other similar
property
• Section 9- Effect of attachment of interest in property belonging to
the estate of a decedent
• Section 10- Examination of party whose property is attached and
persons indebted to him or controlling his property
Sec. 11
When attached property can be sold
• upon hearing with notice to parties
• property attached is PERISHABLE or that the INTEREST OF ALL
PARTIES TO THE ACTION WILL BE SUBSERVED
• proceeds- deposited in court to abide by the judgment
Sec. 14- TERCERIA
• Property is claimed by third person
• Third person- makes an affidavit of his title thereto, or right to possession
thereof
• stating the grounds of such right or title
• serve upon the sheriff and a copy upon the attaching party
• What can the attaching party do?
• file a bond approved by the court to indemnify the third party claimant
• sum- not less than the value of the property levied upon
• No claim for damages for the taking or keeping of the property may be
enforced against the bond unless the action is filed within 120 days from
the date of filing the bond
• Sec. 15 - if judgment be recovered by the attaching party and
execution issue thereon, the sheriff may cause the judgment to be
satisfied
• Sec. 16- if any balance shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution

Note:
The non-payment of the debt when it fell due is not, of itself, proof of
fraud. (PCL Industries v. Court of Appeals, G.R. No. 147970, 31 March
2006).
 RULE 58
PRELIMINARY INJUNCTION
Sec. 1
• At any stage of the action/proceeding PRIOR to judgment/final order
• Requiring a party in a court, agency, a person to:
• REFRAIN from a particular act or acts
• It may also REQUIRE the performance of a particular act or acts – Preliminary
Mandatory Injuction (to correct a wrong in the past)

• May be a main action for injunction OR provisional remedy

• Judgment for injunction is immediately executory
Grounds:
(a) Applicant is ENTITLED to relief demanded the WHOLE or PART of
such relief consists in RESTRAINING the COMMISSION or
CONTINUANCE of act/s complained of or requiring the performance of
act/s, for a limited time on perpetually
• Example: annulment of mortgage and preliminary injunction on foreclosure

(b)Commission, continuance, a non-performance of act/s complained

of during the litigation would PROBABLY work injustice to the
applicant
• Example: annulment of election of directors/preliminary injunction on
access on corporate accounts
Grounds:
(c) PARTY, COURT, AGENCY a PERSON is doing, threatening, or is
attempting to do, or is proving or suffering to be done ACT/S PROBABLY
is violation of the rights of applicant respecting the subject of action or
proceeding; and tending to render the judgment ineffectual
• Example: MTD denied by an RTC, certiorari filed in the Court of Appeals
Sec. 4- Procedure
1. Clear and unmistakeable legal right; that is, a right in esse
2. Material and substantial invasion
3. Urgent need to prevent
4. Grave and irreparable injury
5. No other ordinary, speedy, adequate remedy exists to prevent
infliction of irreparable injury
Requisites for valid issuance of WPI/TRO:
(a) Verified
(b) Requisities
(c) Bond
(d) Notice and hearing
Sec. 5
• 72-hr. TRO – from issuance
• if the matter is of extreme urgency
• if applicant will suffer grave and irreparable injury
• Ex parte – can be issued before summons
• if grave or irreparable injury would result to the applicant before the matter
can be heard on notice
• effective for only 20 days from service
• Temporary Restraining Order – summary hearing
• Writ of Preliminary Injunction – hearing
Period of Effectivity

• RTC – 20 days
• CA – 60 days service TRO
• SC – effective until further orders
Sec. 6 - Grounds for objection/dissolution
1. Insufficient basis
2. Denied or dissolved – upon affidavit of party enjoined on other
grounds although applicant is entitled, the issuance or continuance
thereof would cause IRREPARABLE damage to party enjoined which
applicant can be fully compensated for damages he may suffer AND
bond is filed pays for damages as a result of dissolution
Sec. 7 – may object to insufficiency of bonds
Condition of applicants bond:
• pay what damages are suffered/sustains by reason of WPI/TRO. If court
should decide eventually that applicant not entitled (sec. 4)
Condition of bond of party enjoined
• payment of damages which applicant may suffer due to denial or dissolution
of WPI or TRO.
TRO – non – extendible
• May not be reissued under same ground
 SUMMARY
• TEMPORARY/PROVISIONAL
• Purpose: MAINTAIN/ preserve status quo of the matter
• ANCILLARY
• EQUITABLE REMEDY
What does this mean?
1. “clean hands” doctrine
• to preserve right or interest or prevent a wrong with PRESSING
necessity to AVOID injurious circumstances which CANNOT be
remedied under any standard of compensation
2.necessitates existence of emergency or of a special reason to
justify the writ
 SUMMARY
WHEN granted?
• ANY stage prior to judgment or final order
AGAINST WHOM?
• Party
• Event
• Agency
• Person
WHAT ARE THE KINDS OF PRELIMINARY INJUNCTION?
• Prohibitory – refrain from doing a particular act(s) (preserve status quo)
• Mandatory – commands performance of some positive act to (restore status
quo) correct a wrong in the past
 SUMMARY
Can injunction be the main action?
• Yes.
If a FINAL injunction is granted/denied, what is remedy?
• APPEAL
• but Injunction is IMMEDIATELY EXECUTORY (sec. 4, Rule 39)

What is the life of a WPI?

• Persists until dissolved or until court issues a final decision
 SUMMARY
Sec. 2 – Which court issues?
(a) Court where the action or proceeding is pending
(b) CA if action/proceeding is pending therein
(c) SC if action/proceeding is pending therein
• MTC has no jurisdiction over MAIN case for INJUNCTION – incapable
of pecuniary estimation, but may issue an injunction as a provisional
remedy.
• Sec. 4 – PROCEDURE
(a) Application is VERIFIED
• Shows facts entitling applicant to the relief demanded
(b) Applicant files BOND
• Executed to party or person enjoined
• Amount to be fixed by court
• To the effect that applicant will PAY such person or party ALL
damages which he may sustain by reason of WPI or TRO if court
should finally decide that applicant was NOT entitled thereto
(c)WHEN application for WPI/TRO is included in complaint or initiatory
pleading.
• Multi sala court
• Raffled only after NOTICE to and in the presence of the adverse party to be
enjoined
• Notice preceded, a contemporaneously accompanied, by
 SUMMONS
Upon adverse party in Copy of complaint/initiatory
Philippines pleading
Applicant’s affidavit and
bond

• If summons cannot be served personally or by substituted service

despite diligent efforts OR
• Adverse party is resident temporarily absent OR
• Non-resident – NO NEED FOR CONTEMPORANEOUS SERVICE
(d) Application for TRO shall thereafter be acted upon only after all
parties are heard in a summary hearing conducted within 24 hours
after sheriff’s return of service of/or records are received by branch
selected by raffle

Sec. 5
• 72 hour TRO – from issuance
• 20 day TRO from service
• WPI – counted from service
• TRO – CA – 60 days
• TRO – SC – length of case/ until further orders
 Rule 59
Receivership
When can you avail of it?
• at any time even while on appeal
Where can you avail of it?
• RTC
• CA
• SC
Sec. 1
Receiver of the property subject of the action or proceeding in the ff.
cases:
(a) Party applying has an interest in the property or fund – which is the
SUBJECT of action or proceeding
And that such property or fund is in danger of being LOST, REMOVED,
MATERIALLY INJURED, unless a receiver is appointed to administer
(b) When it appears in an action by the mortgage for the foreclosure of
mortgage that the property is in danger of being WASTED or DISSIPATED or
MATERIALLY INJURED AND the value is probably insufficient to discharge
the mortgage debt or that the parties have so stipulated in the contract of
mortgage
(c) AFTER judgment, to preserve the property during the pendency of
an appeal or to dispose of it according to judgment or to aid execution
when the execution has been retuned unsatisfied or the judgment
obligor refuses to apply his property in satisfaction of the judgment or
otherwise to carry the judgment into effect
(d) Whenever in other cases it appears that the appointment of a
receiver is the most convenient and feasible means of PRESERVING,
ADMINISTERING or DISPOSING of the property in litigation
Sec. 2
BOND – APPLICANT
• Amount fixed by the court
• To the effect that applicant will pay such party
• ALL damages he may sustain by reason of appointment of receiver
in case applicant shall have secured without sufficient cause
Sec. 3
Application may be denied or discharged
• Where adverse party files a bond executed to applicant
• Amount fixed by court
• To the effect that party will pay applicant all damages he may suffer
by reason of the acts, omissions, or other matters specified as a
ground for application
• May also be discharged if it is shown that his appointment was
obtained without sufficient cause
Sec. 4 – Receiver bond
• Faithfully discharge his duties and obey the orders of the court

Sec. 6 – Powers of a receiver

1. Bring and defend actions in his own name
2. Take and keep possession of property in controversy
3. Receive rents;
4. Collect debts due to himself as receiver or to the fund, property,
estate, or person or corporation of which he is the receiver
5. Compound for/compromise the same
6. To make transfers
7. Pay outstanding debts
8. Divide the money of other property
9. All acts court may authorize
Funds
• INVESTED only by court under upon written consent of all the parties to
the action
• NO action may be filed by or against receiver without leave of the court
that appointed him

Sec. 7 – Effect of refusal/neglect to deliver property to receiver

• CONTEMPT
• Liable to receiver
• And damages

Sec. 8 – Termination
• Compensation

Sec. 9 – How to claim from bond

NOTES:
• The subject of receivership is the property subject of the action
• Can be a principal action
• Receiver is independent. He is not agent or representative of any party (not even
applicant)
• Subject to control of court
• Party to the action should not be appointed as receiver
• During pendency of appeal, appellate court may allow application of receiver in
the court of origin
• Hearing required (although not stated)
• Ways to resist or discharge
(a) Insufficiency of applicant’s or receiver’s bond (sec. 5)
(b) Counter bond – Sec. 3
(c) No sufficient cause Sec. 3
 RULE 60
REPLEVIN
• may be an independent action

Sec. 1
• Party praying for recovery of possession of personal property
• When can you avail of it?
• commencement of action before answer
• May already apply for an order for delivery of property
Sec. 2
Affidavit and bond showing:
(a) Applicant is the owner of property (particularly describing it) or is entitled to
possession
(b) Wrongfully detained by adverse party
(c) Alleging the cause of the detention
• Property has not been distrained
• Or taken for a tax assessment
• Or fine pursuant to law or subject of execution or preliminary attachment
• Or under custodia legis
• Or if so seized – that it is exempt from such seizure or custody
(d) Market value
BOND
• double the value
• Conditioned or return of property to adverse party or payment of sum
as may be recovered

Is there a requirement for hearing?

• Not necessarily
Sec. 4- Duty of Sheriff
Sec. 5- Object or (counter bond) redelivery bond
• Double the value also
• Securing delivery of the property, if so adjudged, and damages
Disposition of property by Sheriff
• 5 days from taking of property
• If no objection or the objection is overruled: Deliver to applicant

• If cannot be delivered, sheriff must return to adverse party

REDELIVERY
• posting of bond, automatic redelivery
(a) Double the value
(b) Serve copy of bond
(c) Bond executed to applicant
(d) Before property in delivered to applicant

Sec. 7- TERCERIA
• Unless applicant posts a bond in the value of property under replevin

Claim on bonds (sec. 10) – same as Sec. 20, Rule 12

 Rule 61
Support Pendente Lite
When can you avail of it?
• commencement of action/ proceeding
• Any time prior to final order or judgment
Who may avail of it?
• any party
• not just plaintiff
How do you avail of it?
• verified application
• + affidavits
• Deposition
• Supporting documents
• Stating financial condition of both parties and need/necessity
• Where can you avail of it?
• court where action is pending
• COMMENT
• adverse party should be given 5 days to comment (unless different period
given upon motion)
• Hearing required
• shall be set NOT more than 3 days from filing of Comment or expiry of said
period
CRIMINAL CASES
1. Where civil liability has not been waived, reserved or instituted prior to filing of criminal case
2. Civil liability includes support for offspring as a consequence of the crime
3. Child is born to offended party allegedly because of crime

WHO may file? – offended party

• Parents
• Grandparents
• Guardian
• State
Where can it be filed?
• in criminal case during its pending
Example:
• Rape
• Seduction
Sec. 7- Restitution
• If person ordered to support is eventually not liable therefor, court
shall order reimbursement and legal interest counted from date of
actual payment

• But recipient can reimburse in a separate action from person legally

obliged to give support

• IF recipient fails to reimburse person who provides may seek

reimbursement directly from person legally obliged to give it IN
SEPARATE ACTION.